Enforcement Flag Removal Policy Change

Many people entering Canada find themselves at customs being constantly referred to secondary examination.  There, they are often told by the Canada Border Services Agency (“CBSA“) that their referral to secondary examination was the mandatory result of an enforcement flag being on their file.

Referral to secondary examination is time consuming.  Unnecessary referrals are a burden on both travellers and CBSA.  Because of this, CBSA was traditionally quite facilitative when it came to individuals requesting that an enforcement flag on their file be removed.  As a supervisor from the CBSA explained to me in an e-mail, enforcement flag removal works as follows:

The flag removal process doesn’t delete information, it merely closes the connection between the immigration database and the integrated system on the primary inspection line on that specific client.  The process is not visible to the naked eye – I use this analogy:

You get a lamp for a wedding present from “her” mom. You hate it. It’s a motion sensor lamp and it is hardwired into the wall. You can’t get rid of it, you can’t unplug it, you can’t take the light bulb out but you want the thing to stop lighting up every time you walk by. So, you unscrew the light bulb just enough that it doesn’t make contact. It’s still there, it’s still safe but it won’t ever light up again.

That’s what the flag removal does… we leave everything in place, but alter it slightly so that when the client shows up at the primary line, his name doesn’t light up!

As evidenced from the above e-mail, individuals could traditionally  e-mail the CBSA directly to ask that the enforcement flag be removed.  The CBSA almost always responded favourably within 48 hours.   It was excellent customer service.

While the process is a bit more cumbersome than before, it is still possible to request that an enforcement flag be removed before an individual attempts to enter Canada.

Border service officers are extremely busy.  It is very unlikely that many officers who want to help an individual remove an enforcement flag on their file will be able to take the time to make a written request to their supervisor.  The disadvantage for an officer in making a flag removal request (increased delays and a resulting increased workload for the officer’s co-workers) will almost always outweigh the benefit (that at some point in the future a different officer won’t have to deal with the unnecessary referral).

As an aside, considering that an individual border officer has the ability to deny someone entry to Canada, it is surprising that they don’t have the ability to quickly remove an enforcement flag.


Supreme Court Clarifies Dangerous Driving Law

The Supreme Court of Canada in 2012 clarified the law regarding what constitutes dangerous driving under the Criminal Code.  The decision, R v. Roy, has implications for people who may be inadmissible to Canada for criminality.  Indeed, in Jolly v. Canada (Citizenship and Immigration), the Federal Court of Canada affirmed that it will be a reviewable error if visa officers do not assess criminal equivalency for dangerous driving based on the mens rea standard articulated in Roy.

Section 249 of the Criminal Code provides that:

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

In R v. Roy, the Supreme Court was noted that (emphasis added):

It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedlybeyond mere carelessness.

Accordingly, the actus reus of s. 249 of the Criminal Code is driving in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.  The focus of the actus reus inquiry is on the risks created by the accused’s manner of driving, not the consequences.

The mens rea for the offence is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.  Simple carelessness, to which even the most prudent drivers may occasionally succumb, does not meet the mens rea requirement.

Finally, even where the manner of driving is a marked departure from normal driving, s. 249 requires that the dangerous driving be a result of the marked departure from the norm.



Inadequacy of State Protection

Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.  There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Supreme Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. [My emphasis]

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided.  For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

In other words, there is a presumption that the state can protect its citizens. In order to rebut this presumption, a person seeking protection must show “clear and convincing evidence.”

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Effort vs. Results

In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:

A state’s efforts, on their own, do not establish that protection was actually available to the claimant:

[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).

In other words, whether state protection is adequate depends on its operational effectiveness, not the best efforts or intentions of the state.  Indeed, a Refugee Protection Division decision will be unreasonable if the tribunal only focuses on best intentions.  In Mata v. Canada (Immigration, Refugees and Citizenship)for example, the Federal Court held:

While the Officer correctly states the general principle for state protection (adequate state protection) the decision does not demonstrate that the Officer actually considered the operational adequacy of state protection efforts. For example, the Officer notes that “Hungary is making serious efforts to address the problems that Roma individuals face in that country.” In absence of any analysis regarding the adequacy of those “serious efforts,” the Officer failed to apply the correct test for state protection.

 


Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
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Addressing Newfoundland Nurses

On December 15, 2011 the Supreme Court of Canada (“Supreme Court“) issues its decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 (“Newfounland Nurses“).

In Newfoundland Nurses, the Supreme Court essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review.  Rather, the Supreme Court stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.  The Supreme Court further stated that (citations removed for ease of reading):

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the Department of Justice (the “DOJ“) has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates.  In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach.  But is this really the case?

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